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Alaskan Native Corporations

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1445-DR
ApplicantPort Graham Corporation (PGC)
Appeal TypeSecond
PA ID#XXX-XXXXX
PW ID#N/A
Date Signed2004-10-18T04:00:00

Citation:

FEMA-1445-DR-AK; Port Graham Corporation (PGC)

Cross-reference:

Alaskan Native Corporations

Summary:

Severe storms and flooding from October 23, 2002, through December 20, 2002, caused damages to roads and bridges throughout the Kenai Peninsula Borough. The PGC applied for Public Assistance funding as a local government to repair parts of its road system, but was determined to be an ineligible applicant. The PGC’s first appeal requested that FEMA reverse its original determination. FEMA denied the first appeal stating that the PGC was not an eligible applicant under 44 CFR § 206.222 (c), which specifically states that Alaska Native Corporations are ineligible for Public Assistance because they are a for-profit entity in which the ownership is vested in private individuals. The PGC submitted a second appeal, citing that denial 44 CFR § 206.222 (c) was blatant racial discrimination against PGC Native Americans Shareholders.

Issues:

Is the PGC an eligible applicant?

Findings:

No.

Rationale:

44 CFR § 206.222 (c)

Appeal Letter

October 18, 2004

David E. Liebersbach
Governor’s Authorized Representative
Department of Military and Veterans Affairs
Division of Homeland Security and Emergency Management
P.O. Box 5750
Ft. Richardson, AK 99505-5750

Re: Second Appeal, Port Graham Corporation, Applicant Eligibility,
FEMA- DR-1445-AK

Dear Mr. Liebersbach:

This letter is in response to your April 9, 2004, letter forwarding the referenced second appeal on behalf of the Port Graham Corporation (PGC). The PGC disputes the Federal Emergency Management Agency’s (FEMA’s) ineligible applicant determination under 44 CFR § 206.222 (c), which states, “Indian tribes or authorized tribal organizations and Alaska Native villages or organizations, but not Alaska Native Corporations, the ownership of which is vested in private individuals are eligible to apply for assistance.

Severe storms and flooding from October 23, 2002, through December 20, 2002, caused damages to roads and bridges throughout the Kenai Peninsula Borough. The PGC applied for Public Assistance funding as a local government to repair parts of its road system, but was determined to be an ineligible applicant. The State forwarded the PGC’s first appeal on September 29, 2003, with a recommendation to deny the appeal. FEMA denied the first appeal on November 19, 2003, stating that the PGC was not an eligible applicant under 44 CFR § 206.222 (c), which specifically states that Alaska Native Corporations are ineligible for Public Assistance because they are a for-profit entity in which the ownership is vested in private individuals. On April 9, 2004, the State forwarded the PGC’s second appeal dated February 14, 2004. The State concurred with FEMA’s previous determination that the PGC was not an eligible applicant and again recommended that FEMA deny the appeal.

In its second appeal, the PGC states, “The CFR disqualification statement in 44 CFR § 206.222 is a direct contradiction of the Nondiscrimination in Disaster Assistance policy stated in Section 308 § 5151 of the Stafford Act. The decision to deny our Corporation FEMA funds based on § 206.222 is blatant racial discrimination against Port Graham Corporation shareholders. All of our shareholders are Native Americans defined by Congress in the Alaska Native Claims Settlement Act (ANCSA)… This CFR section is not in compliance with the purpose of the Stafford Act, major nondiscrimination legislation and the Constitution of the United States of America.” The Corporation made a comparison that FEMA had funded repairs for the Homer Electric Association, of which the Corporation was also a member.

The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), as amended in 2000, and its predecessor, the Disaster Relief Act of 1974, limits FEMA Public Assistance to states, local governments and certain private non-profit corporations. Both the Disaster Relief Act, Section 106(6)(A) of P.L. 93-288, and the Stafford Act, 42 U.S.C. 5122(6), include within the definition of local government any "Indian tribe or authorized tribal organization, or Alaska Native village or organization."

In 1989, following passage of the Stafford Act, FEMA published regulations that included eligibility requirements for the Public Assistance Program. Interpreting the Stafford Act's definition of "local government," the regulations at 44 CFR § 206.222 (c) allowed eligibility for “Indian tribes or authorized tribal organizations and Alaska Native villages or organizations, but not Alaska Native Corporations, the ownership of which is vested in private individuals.” This regulation has remained unchanged for more than 15 years. Therefore, because the regulations have the force and effect of law and they exclude Alaska Native Corporations, FEMA is compelled to adhere to them and deny eligibility to the Port Graham Corporation.

The Corporation alleged that FEMA's regulation constitutes "blatant racial discrimination" against Alaska Natives. The intent of the regulation is not to punish or penalize Alaska Natives but, rather, to reflect that an Alaska Native Corporation is not a "government" that exerts governmental control or provides governmental-type services pursuant to an obligation for the general health, safety and welfare of the public generally. Therefore, such corporations are not eligible to apply for Public Assistance as a "local government". The Alaska Native status of the shareholders of these corporations is irrelevant to this analysis. Finally, the Homer Electric Association, referenced in the second appeal, was found eligible because it is a private non-profit corporation with an eligible facility. The Port Graham Corporation is not a private non-profit corporation with an eligible facility as defined in 44 CFR § 206.221.

Accordingly, I conclude that the PGC is not eligible for assistance. Therefore, I am denying the appeal. Please inform the PGC of my decision. My determination constitutes a final decision of this matter pursuant to 44 CFR § 206.206.

Sincerely,
/S/
Daniel A. Craig
Director
Recovery Division
Emergency Preparedness and Response

cc: John E. Pennington
Regional Director
Region X